United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE CHIEF UNITED STATES DISTRICT JUDGE
cause comes before the Court on petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. [DE 42]. The stay previously entered in this
matter has been lifted, and the parties have filed
supplemental briefing or the time for doing so has expired.
For the reasons that follow, petitioner's § 2255
motion is DENIED.
Boddie, was sentenced on April 10, 2014, to a total term of
235 months' imprisonment following his plea of guilty to
counts one and three of a seven-count indictment. Coiint one
charged Boddie with conspiracy to obstruct, delay, and affect
commerce by robbery, 18 U.S.C. § 1951(b), and count
three charged Boddie with using, carrying, and possessing a
firearm which was brandished during and in relation to a
crime of violence, 18 U.S.C. § 924(c)(1)(A). [DE28].
filed a 28 U.S.C. § 2255 motion challenging his
conviction on count three, arguing that it was based on the
unconstitutionally vague residual clause of 18 U.S.C. §
924(c). Upon a motion by the government, the case was stayed
on July 11, 2016, to await decisions by the Fourth Circuit in
United States v. Walker, 934 F.3d 375 (4th Cir.
2019), and United States v. Simms, 914
F.3d229(4thCir.2Ol9). Although Simms was
decided on January 24, 2019, the mandate in
Simms was stayed to await the Supreme Court's
decision in United States v. Davis, 139 S."Cit.
2319 (2019). Following the Supreme Court's decision in
Davis and the Fourth Circuit's mandate in
Simms, this Court sua sponte lifted the
stay in this matter and ordered additional briefing. In this
posture, the ......... v § 2255 motion is ripe for
motion under 28 U.S.C. § 2255 will be granted where the
petitioner has shown that his sentence was imposed in
violation of the Constitution or laws of the United States,
that the court was without jurisdiction to impose the
sentence, that the sentence was in excess of the maximum
sentence authorized by law, or that it is otherwise subject
to collateral attack. 28 U.S.C. § 2255(a). In his §
2255 motion, Boddie argues that his 18 U.S.C. § 924(c)
conviction is invalid as it is based on predicate conviction
that is no longer a crime of violence. Boddie relies on the
Supreme Court's holding in Johnson v. United
States, 135 S.Ct. 2551 (2015), as the basis for his
claim. In Johnson, the Supreme Court held that the
residual clause of the Armed Career Criminal Act's
definition of a crime of violence is unconstitutionally
vague. Id. at 2563; 18 U.S.C. § 924(e)(2).'
defendant shall be subject to a consecutive sentence if he
"during and in relation to any crime of violence or drug
trafficking crime ... for which the person may be prosecuted
in a court of the United States, uses or carries a firearm or
who, in furtherance of any such crime, possesses a
firearm" 18 U.S.C. § 924(c)(1)(A). The predicate
offense for Boddie's conviction under 18 U.S.C. §
924(c) in count three is his interference with commerce by
robbery (Hobbs Act robbery) charge in count two. [DE 1].
Section 924(c) defines a crime of violence as a felony
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
another [the force clause], or
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense [the residual
18 U.S.C. § 924(c)(3)(A)-(B). The residual clause of
§ 924(c)(3) is now invalid. Davis, 139 S.Ct. at
2336; United States v. Simms, 914 F.3d at 252.
However, Hobbs Act robbery remains a crime of violence under
the force clause of § 924(c)(3)(A). United States v.
Mathis, 932 F.3d 242, 266 (4th Cir. 2019). That the
Hobbs Act robbery charge supporting Boddie's §
924(c) conviction was dismissed is of no moment. See
United States v. Carter, 300 F.3d 415, 425 (4th Cir.
2002); United States v. Link, 214 F.Supp. 3d 506,
518 (E.D. Va. 2016). Accordingly, Boddie's § 924(c)
conviction stands because Hobbs Act robbery remains a
qualifying predicate crime of violence under §
certificate of appealability shall not issue absent "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). A petitioner
satisfies this standard by demonstrating that reasonable
jurists would find that an assessment of the constitutional
claims is debatable and that any dispositive procedural
ruling dismissing such claims is likewise debatable.
Miller-El v. Cockrell,537 U.S. 322, 336-38 (2003);
Slack v. McDaniel,529 U.S. 473, 483-84 (2000);
Rose v. Lee,252 F.3d 676, 683 (4th Cir. 2001). As